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PARKER et al. v. KILGO (two cases).
40588.
40589.
Actions for damages, etc. Fulton Superior Court. Before Judge Shaw.
RUSSELL, Judge.
1. Where a petition is filed and service subsequently had upon the defendants sought to be held, the date of service relates back to the date of the filing of the petition so that it is immaterial that the statute of limitation would otherwise have run between the dates of filing and service.
2. A petition which charges a defendant in his trade name as Comstock Distributing Company, although it erroneously designates the defendant as a corporation, may be amended to show that the company is a business proprietorship owned and operated under that name by the defendant Comstock.
3. A return of service may be amended so as to show the true facts of service.
4. The objections of the nonresident co-defendant, in view of the rulings here made, are without merit.
On July 15, 1963, O. B. Kilgo and his wife filed personal injury actions in the Superior Court of Fulton County for injuries allegedly sustained on August 10, 1961, naming as defendants Wendell Parker, a resident of DeKalb County, and "Comstock Distributing Co., a corporation, with officers and agents at 1321 Spring Street, N. W., Atlanta, Fulton County, Georgia, upon whom service may be perfected." The returns of service recite that L. L. Lanier, Deputy Sheriff, served the defendant Comstock Distributing Company, a corporation, by serving Kay Pendley as agent. Verified pleas of nul tiel corporation which recited that they did not waive the court's lack of jurisdiction over the defendants were filed by Kay Pendley and R. D. Comstock, Jr., and all parties thereafter stipulated that Comstock Distributing Company was not a corporation but was the name in which R. D. Comstock, Jr. transacted business. The sheriff, who was made a party to the traverse, answered stating that service was made as recited and whether or not the facts constituted a legal service was a question of law for the court. The plaintiffs then amended their actions by striking from the petition the words, "A corporation," and causing the paragraph under discussion to read: "Comstock Distributing Company, a business proprietorship owned and operated under said name by R. D. Comstock, Jr." The papers were served by a deputy sheriff of Fulton County on "the defendant Comstock Distributing Co., a corporation, by serving R. D. Comstock, Jr., owner, by leaving a copy of the writ and process with him at 1741 Friar Tuck Rd., N.E. at the office and place of doing business of said corporation in Fulton County, Ga."
Comstock, without waiving any lack of jurisdiction over his person, filed (1) a motion to strike the amendment and dismiss the petition on the grounds that the amendment seeks to add a new party, that the purported service is on Comstock Distributing Company, a corporation, and that Comstock has never been legally served; (2) a plea of the statute of limitation on the ground that no legal service has been made and the purported service of August 30, 1963, is more than two years after the alleged right of action accrued; (3) a traverse of service of the petition as amended on the ground that the return of service shows on its face it was made on Comstock Distributing Co., a corporation, at its office and place of business and not on R. D. Comstock, Jr. individually, and (4) a special plea of nul tiel corporation, the verification of which recites that R. D. Comstock, Jr. is the sole owner of Comstock Distributing Co. The second return of service was then amended to recite: "I have this day served Comstock Distributing Company, a business proprietorship owned and operated under said name by R. D. Comstock, Jr., by serving the said R. D. Comstock, Jr., owner, personally, with a true copy of the amended petition and process at his home on 1741 Friar Tuck Road, N.E., Atlanta, Ga." A motion to strike the amendment to the service was filed by Comstock on the ground that a suit against a corporation cannot by amendment be converted into a suit against an individual, and that service on a corporation is not amendable so as to show that an individual and not the corporation was intended to be served. Parker filed a plea to the jurisdiction on the ground that he was a resident of DeKalb County and that the action was not legally proceeding against any resident of Fulton County, and on the further ground that he was illegally served at his home in DeKalb County by a deputy sheriff of Fulton County. The various pleas and motions were overruled and the defendants except.
1. No new party or new cause of action may be added by amendment in actions at law. Code 81-1303. In actions where the procedure is permissible, such as certain cases in equity, the rule is that although a defendant has been served and made a party in one capacity, an amendment seeking to enforce liability against him in another capacity is a new cause of action, with the result that if, between the time of filing the action and the time of the amendment, the bar of the statute of limitation has accrued, the liability sought to be added by the amendment becomes unenforceable. Smith v. Ardis, 49 Ga. 602; Akin v. Ordinary of Bartow County, 54 Ga. 59. In all other cases, if the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation. Poullain v. Poullain, 76 Ga. 420 (a) (4 SE 92); McFarland v. McFarland, 151 Ga. 9 (2) (105 SE 596); Burrow v. Dickerson, 108 Ga. App. 178 (132 SE2d 550).
2. It is no longer issuable that under Georgia procedure the name of either a plaintiff or defendant may be corrected by amendment prior to judgment so long, at least, as the name by which the originally designated party is described imports a person, firm, or corporation, even though it is in fact not so. By laying this premise we immediately do away with any discussion or possible conflict between Western &c. R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 SE 978) and other cases, where the name of one or the other of the parties does not import a legal entity in the first instance. We do away with any distinction between cases where the amendment affects the name of the plaintiff and cases where the name of the defendant is affected by the rule set out in Eslinger v. Herndon, 158 Ga. 823, 826 (124 SE 900). It was there held: "Is the plaintiff so suing, or the defendant so sued, estopped from denying the validity of the judgment and its binding force against him? We think that a judgment rendered against a plaintiff when he sues in his assumed or trade-name, is binding upon him. This is distinctly ruled in Clark v. Wyche, 126 Ga. 24 (54 SE 909). If one may sue and recover a valid judgment under an assumed name, if he be the identical person in whose favor the judgment is rendered, we see no reason why a valid judgment cannot be obtained against a defendant who is sued in his assumed or trade-name, if he be the real person who is sued as the defendant." The dissenting opinion shows consideration of the question of whether the estoppel should be applied equally as against both a plaintiff who files an action and a defendant who merely uses the trade name as a designation of his business activity. That case held that a garnishment run against "Herndon Motor Company," the owner Herndon in fact being served with the summons, could be enforced against him personally. Where the company named as a defendant is described as a corporation, these words may be stricken and the company described as a partnership, Perkins Co. v. Shewmake & Murphey, 119 Ga. 617 (46 SE 832), or as an individual doing business under such trade name, Schnore v. Joyner, 42 Ga. App. 688 (157 SE 353). "The term corporation was merely descriptive of the named defendant Coca-Cola Bottling Co., and not a part of the name itself." Bell v. Ayers, 82 Ga. App. 92, 95 (60 SE2d 523). See also Mauldin v. Stogner, 75 Ga. App. 663 (44 SE2d 274); Martin v. Waltman, 82 Ga. App. 375 (61 SE2d 214); Johnson & Johnson Const. Co. v. Pioneer Neon Supply Co., 96 Ga. App. 867 (101 SE2d 918); American Fidelity &c. Co. v. Farmer, 77 Ga. App. 166 (48 SE2d 122); Mortemoth Co. v. Southeastern Fur Co., 98 Ga. App. 637 (106 SE2d 194); Charles v. Valdosta Foundry &c. Co., 4 Ga. App. 733 (2) (62 SE 493); Smith & Co. v. Columbia Jewelry Co., 114 Ga. 698 (1) (40 SE 735); Hudgins Contracting Co. v. Redmond, 178 Ga. 317 (2) (173 SE 135); Carrollton Coca-Cola Bottling Co. v. Pace, 56 Ga. App. 267 (192 SE 473). McGowans v. Speed Oil Co., 94 Ga. App. 35 (93 SE2d 597) points up the distinction: if the original misnomer or trade name is in fact the name of an existent, whether or not connected with the litigation, the substitution of another entity in place of the original one constitutes the addition of another party, a new defendant, and comes within the inhibition of Code 81-1303. As to Gibbs v. Rhodes Furniture Co., 58 Ga. App. 352 (198 SE 315), we agree with the plaintiff in error that no really sound distinction can be made between it and the case at bar. It is true that it was a garnishment, which is a type of action where the summons is especially important not only because it is the only place where the garnishee is named and the only process by which his attendance and compliance are compelled, but also it calls on him to do something from the actual date of service rather than the date of filing--that is, not pay out funds owing the defendant which may be the subject matter of the garnishment. The distinction urged in Smith v. Hartrampf, 106 Ga. App. 603 (127 SE2d 814), that the company is specifically stated to be a corporation, is not good in view of the limitation in Bell v. Ayers, 82 Ga. App. 92, supra: "if no such corporation exists." If one does exist, of course, there would be a change of parties as stated in McGowans, supra. The additional statement in Smith that if Gibbs is not distinguishable we are bound by the older Supreme Court decision of Mayer & Lowenstein v. Chattahoochee Nat. Bank, 46 Ga. 606, is true, and it is in our opinion also in conflict
with Eslinger v. Herndon, 158 Ga. 823, supra, and will accordingly not be followed. The amendment changing the designation of the defendant from "Comstock Distributing Co., a corporation" to "Comstock Distributing Co., a business proprietorship owned and operated under said name by R. D. Comstock, Jr." was properly allowed.
3. The original attempt at service of process in each case was of course void because no service was made on Comstock. The question does not arise here, as it did in some of the cited cases, as to the effect of serving a proper defendant in an improper capacity. The second return of service was defective in that it still recited service upon a corporation. The amended return of service was, however, properly allowed and cured this defect. Smith v. Hartrampf, 106 Ga. App. 603, supra. There was no need for a new process or prayer for process. The prayer was that the defendants be served with process, and the process recited that "the defendants herein are hereby required, personally or by attorney, to be and appear at the Superior Court, to be held in and for said county within 30 days from the date of service of the within petition upon each defendant."
4. The only contention urged by the co-defendant Parker is that, as a resident of DeKalb County, he is not subject to suit in Fulton County in the absence of a co-defendant within the jurisdiction of that court. Since we hold that Comstock is a proper party defendant, it follows that Parker's plea to the jurisdiction was properly overruled.
The trial court did not err in any of its rulings.
Judgments affirmed. Nichols, P. J., and Hall, J., concur.
Howe & Murphy, Lokey & Bowden, Hamilton Lokey, contra.
Smith, Swift, Currie, McGhee & Hancock, William W. Horton, for plaintiffs in error.
DECIDED APRIL 7, 1964 -- REHEARING DENIED MAY 12, 1964.
Friday May 22 21:49 EDT


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